Filed 12/19/19 P. v. Uch CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KANA UCH,

Defendant and Appellant.

F079740

(Super. Ct. Nos. F03902136-1, CF03902136)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appellant Kana Uch appeals from the trial court’s denial of his petition to vacate his murder conviction and resentence him pursuant to Penal Code section 1170.95. Following independent review of the record pursuant to People v Wende (1979) 25 Cal.3d 436 (Wende), we affirm.

FACTUAL AND PROCEDURAL HISTORY

Background

On May 28, 2002, Uch and two fellow gang members, Jerry Ouch and Savann Mao, were smoking marijuana when they began talking about how in the past, rival gang member, Kimrath Seang, had once shot at Mao and other transgressions against their gang by Seang’s gang. After agreeing to do something to Seang, the three men went to a house where Mao retrieved a Tec-22 firearm and gave it to Ouch. Uch gave Mao a .357-caliber Smith and Wesson revolver he carried on him. The trio eventually went to the apartment complex where Seang lived and left without seeing him. They returned at approximately 8:00 p.m. and saw Seang sitting at a table. As they approached Seang, Mao positioned himself to Uch’s left and Ouch to his right to allow for cross directional shooting in case one of them missed. Uch then told Seang, “What’s up dog?” Seang did not respond. Uch then told Ouch and Mao, “… go ahead and do your thing.” Mao approached Seang and told him, “… [W]hat’s up now? What you gonna do?” Mao and Ouch shot a total of 14 rounds at Seang before running away with Uch. Seang ran into his apartment and died from a bullet that entered his chest and pierced his lungs and aorta.

On August 22, 2003, the Fresno County District Attorney filed a first amended information charging Uch with premeditated murder (§ 187, subd. (a)), a use of a firearm by a principal enhancement (§ 12022.53, subd. (b) & (e)(1)), a discharge of a firearm by a principal causing injury enhancement (§ 12022.53, subds. (c), (d), & (e)(1)) and a gang enhancement (§186.22, subd. (b)(1)).

On September 13, 2005, Uch pled no contest to willful, premeditated, deliberate first degree murder with malice aforethought. On October 19, 2005, the court sentenced him to 25 years to life.

The Petition for Resentencing

“Senate Bill 1437 was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds … section 1170.95, which allows those ‘convicted of felony murder or murder under a natural and probable consequences theory … [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts ….’ (§ 1170.95, subd. (a).)

“An offender may file a petition under section 1170.95 where all three of the following conditions are met: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ (§ 1170.95, subd. (a)(1)–(3).)

“Pursuant to section 1170.95, subdivision (c), the petition shall include, among other things, a declaration by the petitioner stating he or she is eligible for relief based on all three aforementioned requirements of subdivision (a). A trial court that receives a petition under section 1170.95 ‘shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.’ (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court ‘shall issue an order to show cause.’ (§ 1170.95, subd. (c).)

“The trial court must then hold a hearing ‘to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not … previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (People v. Martinez (2019) 31 Cal.App.5th 719, 723–724.)

On July 3, 2019, Uch filed a petition for resentencing pursuant to section 1170.95.

On July 24, 2019, the trial court denied Uch’s petition with prejudice, finding he was not eligible for resentencing because he failed to make a prima facie case that he came within the provisions of section 1170.95. In so finding, the court noted that Uch pled no contest to murder with malice aforethought and Uch planned and executed the murder of the victim.

On August 2, 2019, Uch filed a timely appeal.

Uch’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (Wende, supra, 25 Cal.3d 436.) However, in a letter filed on October 4, 2019, Uch contends he was convicted of first degree murder on an aiding and abetting and a natural and probable consequences theory based on him aiding an assault with a deadly weapon. He further contends he was denied his right to due process because the trial court did not appoint counsel to assist him with his petition or provide him with the opportunity to present additional evidence. Uch also contends his appellate counsel should have raised some issues that related to his initial conviction and that counsel provided ineffective representation by filing a Wende brief. There is no merit to these contentions.

Section 1170.95, subdivision (a) provides: “A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when [certain conditions apply.]”

Uch was convicted on a first degree premeditated murder with malice aforethought theory, not of felony murder or murder under a natural and probable consequences theory. Further, in his confession to police, he admitted he was a major participant in the murder, providing one of the firearms and setting up in a formation with his fellow gang members that made it difficult for the victim to avoid being shot, and he directed his fellow gang members to shoot the victim. Therefore, because Uch was not convicted of felony murder or murder under a natural and probable consequences theory, he was not eligible to file a petition pursuant to section 1170.95. Since he was not eligible to file a petition pursuant to this section, a fortiori it follows he was not entitled to appointment of counsel to assist him with the petition or to offer new or additional evidence on whether he was entitled to relief.

Moreover, “[e]stablishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result.” (People v. Dennis (1998) 17 Cal.4th 468, 540, italics added.) Because Uch appealed from a denial of his petition for resentencing pursuant to section 1170.95, appellate counsel could only raise issues related to the denial of the petition. Thus, appellate counsel was not ineffective because he did not raise any issues that related to his initial conviction. Further, since we did not find any reasonably arguable issues, we summarily reject Uch’s contention that his appellate counsel provided ineffective representation because he filed a Wende brief.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.